This Source Code License Agreement is between Vermont Database Corporation, 400 Upper Hollow Hill Road, Stowe, VT 05672 USA and ___________________________________________________ (“LICENSEE”).
WHEREAS, Vermont Database Corporation and LICENSEE, desire to enter into a Source Code License Agreement whereby Vermont Database Corporation will license to LICENSEE, certain computer software programs.
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties agree as follows:
1.1 SOURCE CODE - means a computer program that is represented in a programming language form used by human beings to write and read computer programs.
1.2 OBJECT CODE - means a computer program that is represented in a binary digit form that is directly readable by a computer. It is the “machine language” form of SOURCE CODE.
1.3 LICENSED SOFTWARE - means the particular SOURCE CODE licensed to LICENSEE by Vermont Database Corporation under this Agreement, as further defined in Appendix “A” to this Agreement.
1.4 APPLICATION SOFTWARE - computer program(s) designed to perform specified tasks, such as word processing or aging of accounts receivable, executable by a designated computer operating system.
2. LICENSE GRANT
2.1 Vermont Database Corporation grants to LICENSEE, for the term of this Agreement, a nonexclusive, nontransferable, world-wide right to:
2.1.1 Use the LICENSED SOFTWARE, internally only, for the purpose of fixing defects and developing enhancements to Vermont Database Corporation’s software products;
2.1.2 Use the LICENSED SOFTWARE, internally only, for the purpose of modifying APPLICATION SOFTWARE you have developed using Vermont Database Corporation software products or merging such APPLICATION SOFTWARE with another program or programs.
2.1.3 Distribute, in OBJECT CODE form, only those files named in the file REDISTRB.TXT on the diskette packaged with the C-odeScript Developer’s Kit, and any modifications you make to such files using the LICENSED SOFTWARE, provided such distribution is by inclusion of such file in an APPLICATION SOFTWARE that you have developed. No other use of the LICENSED SOFTWARE is permitted.
2.2 With respect to the uses allowed under paragraphs 2.1.1 and 2.1.2 above, the LICENSED SOFTWARE may only be used by the Authorized Users listed in Appendix “A”, and only such Authorized Users shall be entitled to access to Vermont Database Corporation OBJECT CODE created from the LICENSED SOFTWARE. The Authorized Users listed in Appendix “A” may be amended from time to time upon request by LICENSEE and payment by LICENSEE of any additional license fees required by Vermont Database Corporation.
3. PROPRIETARY PROTECTION
3.1 LICENSEE shall be entitled to make one copy of the LICENSED SOFTWARE for archival backup purposes only, or copy the LICENSED SOFTWARE onto the hard disk of a single computer, and retain the original solely for archival backup purposes. LICENSEE shall reproduce all copyright notices, as depicted on the master copies of the LICENSED SOFTWARE, on any media that it uses for the storage of the LICENSED SOFTWARE or OBJECT CODE compiled from the LICENSED SOFTWARE. LICENSEE agrees to indemnify and hold Vermont Database Corporation harmless against any loss to WHEREAS, Vermont Database Corporation arising from any use, disclosure or copying of the LICENSED SOFTWARE in violation of this Agreement, copyright laws or international treaty provisions.
3.2 LICENSEE acknowledges and understands that WHEREAS, Vermont Database Corporation asserts that the LICENSED SOFTWARE contains valuable trade secrets and proprietary information that are the property of Vermont Database Corporation. LICENSEE covenants and agrees not to encumber the LICENSED SOFTWARE in any manner, nor market, sell, assign, lease, transfer, license or sub-license the LICENSED SOFTWARE or any OBJECT CODE compiled from the LICENSED SOFTWARE, or any part or parts thereof, other than in accordance with the terms and conditions of this Agreement.
3.3 LICENSEE shall protect the confidentiality of the LICENSED SOFTWARE, and any documentation provided with the LICENSED SOFTWARE, and of all trade secrets and proprietary or other confidential information contained therein to at least the same degree as the protection provided by LICENSEE with respect to LICENSEE’S own proprietary and confidential materials. Notwithstanding the preceding sentence, the protection required by LICENSEE under this paragraph 3.3 shall not be less than reasonable protection. LICENSEE shall not allow or facilitate any attempt to recreate, generate, or reverse-engineer any version or any portion of any version of the LICENSED SOFTWARE by any person, nor shall LICENSEE aid or permit others to do so.
3.4 LICENSEE acknowledges and agrees that disclosure of the trade secrets or propriety or other confidential information of WHEREAS, Vermont Database Corporation or use of the LICENSED SOFTWARE in breach of this Agreement is likely to cause Vermont Database Corporation harm for which damages may not be an adequate remedy, and that WHEREAS, Vermont Database Corporation shall, therefore, be entitled to equitable relief to restrain such breach, without prejudice to any other right or remedy.
3.5 LICENSEE agrees to indemnify and hold Vermont Database Corporation harmless from and against any and all costs and reasonable attorney fees incurred by Vermont Database Corporation in connection with any action or proceeding brought by Vermont Database Corporation or any other party as a direct or indirect result of any such unauthorized disclosure.
4. LIMITATION OF WARRANTY AND LIABILITY THE LICENSED SOFTWARE AND ASSOCIATED DOCUMENTATION ARE PROVIDED “AS IS”, WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHEREAS, Vermont Database Corporation’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE REFUND OF ALL LICENSE FEES PAID TO Vermont Database Corporation UNDER THIS AGREEMENT. Vermont Database Corporation WILL NOT BE LIABLE FOR ANY PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
5. COPYRIGHT INDEMNITY
5.1 Subject to the limitation on liability set forth above, WHEREAS, Vermont Database Corporation will defend and indemnify LICENSEE against any action against LICENSEE claiming that the unmodified LICENSED SOFTWARE constitutes a direct infringement of any valid copyright under the laws of the United States, Canada, or Europe, provided that Vermont Database Corporation has sole control of such action and provided LICENSEE notifies Vermont Database Corporation immediately in writing of the claim and gives Vermont Database Corporation such authority, information and assistance as are necessary to settle or defend such claim.
5.2 In the event of an infringement claim subject to the foregoing indemnification, Vermont Database Corporation shall use reasonable efforts on behalf of LICENSEE either to obtain the right to continue using the LICENSED SOFTWARE or to replace or modify the LICENSED SOFTWARE so that it becomes non-infringing. In the event neither of these alternatives is reasonably available, the parties agree to terminate this Agreement as to any infringing LICENSED SOFTWARE.
5.3 Vermont Database Corporation shall have no liability for, and LICENSEE shall indemnify and hold Vermont Database Corporation harmless from, any claim of infringement which would not have arisen but for: (1) the use of other than a current, unaltered version of the LICENSED SOFTWARE, or (2) the use of LICENSED SOFTWARE that has been modified or merged with other programs or data.
No annual maintenance, technical support, or updates are included in the license fee for the LICENSED SOFTWARE unless otherwise set forth on Exhibit “A”.
7.1 One hundred percent (100%) of the initial license fees are earned upon execution of this Agreement. License fees shall be payable in accordance with the payment terms set forth in Exhibit “A”.
7.2 Unless otherwise set forth in Exhibit “A”, invoiced license fees shall be due and payable 30 days after invoice date. After 30 days, interest shall accrue on the unpaid balance of any license fee at the rate of 1.5% per month or partial month that the fee or the interest accrued thereon remains unpaid.
8. GENERAL PROVISIONS
8.1 If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, the validity of this Agreement and all other provisions shall not be affected.
8.2 LICENSEE shall comply with all applicable laws, including, without limitation, the export control laws of the United States and prevailing regulations which may be issued from time to time by the United States Department of Commerce and Office of Munitions Control, United States Department of State, concerning the exporting, importing and re-exporting (to the extent permitted under this Agreement) of the LICENSED SOFTWARE or APPLICATION SOFTWARE incorporating OBJECT CODE compiled from the LICENSED SOFTWARE. LICENSEE shall also comply with the United States Foreign Corrupt Practices Act, and shall indemnify Vermont Database Corporation from any failure to comply with or violation of such Act by LICENSEE. LICENSEE shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses, approvals, validations and other consents, and shall make any and all filings, statements, reports and the like, required for the lawful performance, under applicable laws, of its obligations under this paragraph. LICENSEE agrees that, regardless of any disclosure made by any end-user of an ultimate destination of the LICENSED SOFTWARE or APPLICATION SOFTWARE incorporating OBJECT CODE compiled from the LICENSED SOFTWARE, LICENSEE will not, either directly or indirectly, export or transfer, or knowingly permit to be exported or transferred, across any national boundary any such software, or related proprietary material or any direct product thereof, as defined in or specified by applicable regulations, without first obtaining any and all licenses that may be required by the United States Department of Commerce, Office of Export Administration, and any other agency or department of any government, and without first complying with all applicable laws and regulations, all at LICENSEE’s sole effort and expense. This provision shall survive any termination or expiration of this Agreement.
8.3 This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado, United States of America.
8.4 The prevailing party in any legal action or proceeding brought to enforce any term or provision of this Agreement shall be entitled to recover its reasonable costs and attorney’s fees.
8.5 All notices, demands or consents required or permitted under this Agreement shall be in writing and shall be delivered personally or sent by certified or registered mail to the respective parties at the addresses set forth on the first page of this Agreement, or at such other addresses as may be designated by notice pursuant to the terms of this paragraph. Such notices shall be deemed to have been duly given upon personal service or three days after deposit in the United States mail, postage prepaid.
8.6 Nothing contained in this Agreement shall constitute either party an agent or representative of, or a joint venturer with, the other, or authorize it to make any commitment or agreement on the other’s behalf.
8.7 All payments required under this Agreement shall be in United States dollars, and shall be net of all governmental taxes, charges or fees other than taxes based on the receiving party’s income.
9. TERM AND TERMINATION
9.1 This Agreement shall be effective upon execution by both parties.
9.2 Unless terminated earlier under the provisions of this Agreement, this Agreement shall remain in force for a period of ten (10) years from the effective date of this Agreement.
9.3 Either party shall have the right at its sole discretion, to terminate this Agreement prior to the expiration of the term of this Agreement upon the occurrence of the other party’s failure to pay any amounts due under this Agreement or the other party’s failure to perform any of its other obligations under this Agreement if the nonperformance is not corrected within thirty (30) days after written notice.
9.4 Immediately after termination of this Agreement, LICENSEE shall cease making or distributing copies of any APPLICATION SOFTWARE incorporating OBJECT CODE compiled from the LICENSED SOFTWARE, and within two (2) weeks shall destroy, or return to Vermont Database Corporation, at LICENSEE’S expense, all copies of the LICENSED SOFTWARE and associated documentation.
10. ENTIRE AGREEMENT
10.1 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations and agreements with respect to this subject matter, whether oral or written.
10.2 APPENDIX “A” is incorporated as part of this Agreement.
10.3 This Agreement shall not be modified except by an instrument in writing signed by duly authorized representatives of the parties.
Vermont Database Corporation
Company Name, Address
John Elkins, CEO
1. Description of Licensed Source Code:
2. Authorized Users:
3. Payment Terms:
$ payable upon execution of this agreement.
4. Other Provisions:
Information on Vermont Database Corporation products and services, including license agreements, can be found at our web site, http://www.vermontdatabase.com, or by sending email to mailto email@example.com.